Gaston v. Angelone

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-7676 JOHN F. GASTON, Petitioner - Appellant, versus RONALD J. ANGELONE, Director of the Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (CA-02-671) Submitted: March 18, 2003 Decided: March 27, 2003 Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges. Dismissed by unpublished per curiam opinion. John F. Gaston, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: John F. Gaston seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C. § 1651 (2000), but construed by the district court as a habeas corpus petition under 28 U.S.C. § 2254 (2000). An appeal may not be taken to this court from the final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). When a district court dismisses a habeas petition solely on procedural grounds, a certificate of appealability will not issue unless the petitioner can demonstrate both “(1) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and (2) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’” Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert. denied, 534 U.S. 941 (2001). We have independently reviewed the record and conclude that Gaston has not satisfied this standard. See Miller-El v. Cockrell, U.S. , 2003 WL 431659, at *10 (U.S. Feb. 25, 2003) (No. 01- 7662); see also 28 U.S.C. § 2244(b)(3) (2000). Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions 2 are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3